An Ignoble Lie

The same Justice Holmes who introduced the marketplace­of­ideas metaphor in the era of the syndicalists was also the one who warned laissez­ faire capitalists that "a constitution is not intended to embody a particular economic theory." ²³⁶ Holmes did not foresee, however, a world where the metaphor would override the warning. He did not imagine a nation where the symbol of the marketplace of ideas would itself become the handmaiden of commerce. Just as "[l]ate nineteenth­ and twentieth­century financial and industrial moguls went to sleep at night secure in the knowledge that their world turned on the principles of economic laissez­faire," ²³⁷ so late twentieth­century advertisers sleep soundly believing that commercial communication is generally safe in the free speech marketplace.

If commercial communication is safe, it is not because it actually furthers the First Amendment's traditional values of rational decisionmaking and self­ realization. Rather, it is because it has effectively co­opted the marketplace metaphor. Meanwhile, Justice Blackmun and his allies have ignored the dissonance between today's commercial expression and the noble purposes of the First Amendment. If they were to be frank, they would concede that the real reason for constitutional protection of modern mass advertising is less ennobling: It is speech in the service of selling. ²³⁸

Constitutionally speaking, if the new moguls of commerce are to rest easily, they must perpetuate the lie of the marketplace­of­ideas metaphor. If they cannot, they must convince the Court to explicitly embrace their laissez­faire theories in the law of free speech. Then, the constitutional law of communication might, for the first time, be aligned with the realities of commerce. Constitutional candor might also give rise to the conditions necessary for a more realistic form of progressive resistance. No longer would the critics of capitalism be required to confine their opposition to cramped quarters, namely the terms of traditional free­speech theory. If the Court were to place the real rationale for commercial speech in bold relief, resisters might then attack the resulting constitutional law for what they see it to be­capitalism devouring communication.

Of course, that the resistance can be made more real does not mean that it will be rendered any less futile. For this is a peculiar type of resistance. Unlike the popular defiance of the Conseil National de la Resistance in wartime France, ²³⁹ the resisters against commercialism may themselves be met by popular defiance as they fight against the business of America. The general populace is not likely to sympathize with the resister's cry, because the ideas and imagination of the populace register closely with the codes of commerce.

For now, an ignoble lie endures. And the lie reflects the perplexities of our commercial culture. In this culture, the law of free speech necessarily bends to the demands of commerce. Madisonian ideals are slouching toward Madison Avenue. If the First Amendment can no longer promote its traditional values, it is because the commercial marketplace no longer especially values them.